The Competitive Enterprise Institute (CEI) released a new report today, calling on the White House to issue a new executive order to highlight and strengthen the review and control of sub-regulatory guidance documents. In his report, “A Partial Eclipse of the Administrative State? A Case for an Executive Order to Rein in Guidance Documents and Other ‘Regulatory Dark Matter,’” CEI Vice President for Policy Wayne Crews argues that over-delegation by Congress to agencies, regulatory overreach by those agencies, and court deference to both has led to a proliferation of guidance documents, policy statements, memoranda, bulletins, letters and other such “regulatory dark matter” regarded by the regulated community as binding in practice, even if not technically binding in law.
Last week, the U.S. House of Representatives passed the GOOD (Guidance Out Of Darkness) Act, which would provide greater transparency and disclosure by requiring agencies to make guidance documents available online in an easy-to-find format for the public. Senator Ron Johnson’s (R-Wis.) companion version should be a bipartisan regulatory accountability measure, but the political environment in the Senate casts doubt on passage. Regardless, additional steps beyond reporting are required that call for a presidential executive order at this stage.
“Despite cutting the American people out of the process, guidance documents are nonetheless frequently treated as binding by businesses and individuals; this undermines constitutional order and fosters abuse of the law governing ordinary notice-and-comment regulations,” said Crews. “Since congressional action is unlikely to actively restrain the overuse of guidance documents in the future, President Trump should issue a new, well-crafted executive order to elevate this issue as a national concern and explicitly, permanently strengthen the review and control of ‘regulatory dark matter.’”
In order to ensure the executive order has lasting effect, like President Reagan’s seminal executive order 12,291 on Office of Management and Budget regulatory analysis, Crews recommends the executive order should contain specific provisions unlikely to be overturned by future presidents, including:
- Reaffirming already “official” and semi-official procedures for guidance oversight
- Improving disclosure of specific guidance and compiling summary statistics
- Incorporating guidance into the annual Regulatory Plan and the Unified Agenda
- Designating guidance as “regulatory” or “deregulatory”
- Modifying the Congressional Review Act’s reporting template to clearly designate guidance
- Affirming that agency guidance is null unless submitted to GAO and Congress
“Until Congress is ready to resume its role in overseeing regulatory policy, the only way to provide transparency and restrain the surge of ‘regulatory dark matter’ is for the president to act,” said Crews.
You can view the full report here.
- More analysis from Wayne Crews: Mapping Washington's Lawlessness, 2017 Edition
- Crews in Forbes: Here's What Donald Trump And Congress Should Do About Regulatory Dark Matter
- VIDEO: What is Regulatory Dark Matter?